COURT OF APPEALS
DATED AND FILED
January 25, 2011
Acting Clerk of Court of Appeals
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
IN COURT OF APPEALS
Joseph H. Eckstein,
from an order of the circuit court for
¶1 PER CURIAM. Joseph Eckstein, pro se, appeals an order denying his motion for sentence modification. Eckstein argues: (1) the trial court erroneously exercised its discretion in imposing an excessive sentence; (2) the court erred by denying his motion for sentence modification without a hearing; and (3) the Parole Commission’s denial of his parole is a new factor warranting sentence modification. We reject these arguments and affirm the order.
¶2 In 1999, Eckstein was convicted following a bench trial of conspiracy to commit first-degree intentional homicide and solicitation to commit first-degree intentional homicide of his estranged wife, Annamaria Eckstein. Out of a maximum possible fifty-year sentence, the court imposed concurrent sentences consisting of forty years’ imprisonment on the conspiracy count and ten years’ imprisonment on the solicitation count. On direct appeal, Eckstein challenged the sufficiency of the evidence to support his convictions and, based on his belief that solicitation is a lesser-included offense of conspiracy, claimed the trial court erred by convicting him of both offenses. Eckstein also argued the court erroneously exercised its sentencing discretion. We rejected Eckstein’s arguments and affirmed both the judgment of conviction and order denying his motion for postconviction relief. State v. Eckstein, No. 2000AP117-CR, unpublished slip op. (WI App July 25, 2000).
¶3 Eckstein then filed a Wis. Stat. § 974.06 motion for postconviction relief alleging he was denied the effective assistance of trial counsel. That motion was denied after a hearing, and this court affirmed that denial on appeal. State v. Eckstein, No. 2002AP2607, unpublished slip op. (WI App May 28, 2003). Eckstein, pro se, subsequently filed the underlying motion for sentence modification, asserting various new factors. The trial court denied the motion without a hearing and this appeal follows.
I. Excessive Sentence
argues he is entitled to sentencing relief on grounds the trial court imposed
an excessive sentence. Specifically,
Eckstein contends a lesser sentence was warranted given his age, health, and
status as a first-time offender. This
court, however, addressed the trial court’s sentencing discretion on direct
appeal and rejected a similar argument advanced by Eckstein. “A matter once litigated may not be
relitigated in a subsequent postconviction proceeding no matter how artfully
the defendant may rephrase the issue.” State
v. Witkowski, 163
II. New Factors
Eckstein contends the trial court improperly denied his sentence modification motion
without a hearing or adequate explanation. The purpose of sentence modification is to
correct an unjust sentence. State
v. Koeppen, 2000 WI App 121, ¶33, 237
new factor is “a fact or set of facts highly relevant to the imposition of the
sentence, but not known to the trial judge at the time of the original
sentencing, either because it was not then in existence, or because even though
it was in existence, it was unknowingly overlooked by all of the parties.” See Rosado v. State, 70
Eckstein claims he is not guilty of conspiracy.
This apparent challenge to the sufficiency of the evidence is not a new
factor but, rather, an attempt to relitigate a legal claim that was decided
against him on direct appeal. Eckstein is
barred from renewing this claim now. See Witkowski,
Eckstein contends that if he is guilty of anything, one of the State’s main
witnesses, Crystal Graham, is guilty of aiding and abetting. Eckstein’s personal opinion regarding the
culpability of a witness on a different charge, however, is not a new factor
warranting modification of Eckstein’s sentence.
Eckstein contends that if he is guilty of anything, it should be a lesser
charge than conspiracy to commit first-degree intentional homicide. Again, Eckstein is barred from now
challenging the sufficiency of the evidence to support his conspiracy
conviction. See id. Moreover, the notion that the prosecutor
could have charged Eckstein differently is not a fact that would be unknown to
the sentencing court.
Eckstein claims he is a victim of revenge, coercion, entrapment and adequate
provocation. This is not a new factor
but, again, an attempt to cast doubt on his convictions. Further, because Eckstein specifically
informed the court of his conspiracy theory at the sentencing hearing, it was
known to the court at the time the sentence was imposed.
Eckstein argues he was not read his Miranda rights
before the presentence investigation interview.
This is not a new factor justifying sentence modification. Even on the merits, Miranda warnings are only
required “to the extent that [the presentence report] seeks statements from a
defendant on an element upon which the State still has the burden of
proof.” State v. Heffran, 129
Eckstein challenges what he describes as an “erroneous criminal complaint and
information.” Eckstein has long since
forfeited his various claims regarding the complaint and information. See State v. Huebner, 2000 WI 59, ¶10,
on their merits, Eckstein’s claims fail:
(1) the complaint was signed and filed by the assistant district attorney
on September 4, 1998, days after the witness statements supporting the
complaint were taken; (2) contrary to Eckstein’s assertion, there was an
information filed on the solicitation charge to commit first-degree intentional
homicide; and (3) contrary to Eckstein’s assertion, there is no statutory
requirement that an information be filed under oath and state grounds upon
which the charge is based. See Wis.
Stat. § 971.01. Even
assuming the charging documents suffered from a technical defect, Eckstein has
not shown any prejudice and, therefore, is not entitled to relief. See
Wis. Stat. § 971.26
(judgment shall not be affected by any defect or imperfection in matters of
form which do not prejudice defendant).
Eckstein’s claim that the sentence imposed was unduly harsh is not a new factor
but, rather, a repeat of his first argument in this appeal and another attempt
to relitigate a legal claim that has already been decided against him. He is barred from renewing it now. See
Eckstein points out that he was preparing for a divorce hearing at the time of
the offenses. Eckstein therefore submits
that if his wife was to be killed, there would have been no need for him to
prepare for the hearing. To the extent
this appears to be another challenge to the sufficiency of the evidence
supporting his convictions, he is barred from relitigating that claim. See
id. In any event, because the sentencing court was
aware of Eckstein’s claims of innocence, it is not a new factor justifying
Eckstein contends he was prejudiced by his trial counsel, the judge and the
State. Eckstein’s challenge to the
effective assistance of his trial counsel, sufficiency of the evidence and the
court’s sentencing discretion were all raised and rejected by this court in
earlier proceedings. Eckstein is barred
from relitigating them now.
Eckstein complains the news media “had [him] guilty before trial.” If Eckstein is suggesting that news media coverage
warranted either a change in venue or a mistrial, he has forfeited the
objection and is procedurally barred from raising it now. See
Eckstein’s claim that he was “in fear for his life and safety” is not a new
factor warranting sentence modification.
As the State notes, it is unclear how Eckstein’s alleged fear is a fact
highly relevant to the imposition of the sentence or how such fear would
frustrate the purpose of the original sentencing. This court will not consider arguments that
are inadequately briefed.
Eckstein’s claim of “erroneous charging information and trial presentations” is
not sufficiently developed. Therefore,
we will not consider it further.
Eckstein notes that Graham was paid $200 by the
Eckstein contends Graham was not credible per her own words. Again, this court has concluded there was
sufficient evidence to support Eckstein’s convictions and he cannot challenge
that now. See Witkowski, 163
the fact that Eckstein’s wife had phobias and nightmares was brought to the
sentencing court’s attention and, therefore, is not a new factor justifying
Eckstein’s sixteenth “new factor” is his claim that he is actively pursuing
involvement in restorative justice. This
statement represents nothing more than an alleged change in Eckstein’s
attitude. Such a change does not qualify
as a new factor as a matter of law. See, e.g., State v. Wuensch, 69
the extent Eckstein challenges the denial of his motion without a hearing, a
postconviction motion may be denied without a hearing if the motion presents
only conclusory allegations or if the record otherwise conclusively
demonstrates that the defendant is not entitled to relief. See
v. Allen, 2004 WI 106, ¶9, 274
III. Parole Denial
final argument is that the Parole Commission’s decision to deny his parole is a
new factor warranting sentence modification.
According to Eckstein, the trial court intended to sentence him to the
minimum amount of time before parole eligibility—ten years—and the Parole
Commission frustrated that intent by denying his parole, ostensibly due to a
1994 letter issued by then Governor Tommy Thompson to the Department of
Corrections Secretary. We are not persuaded.
this court has already concluded that the 1994 letter is not a new factor
warranting sentence modification. See State v. Wood, 2007 WI App 190, ¶11,
one point in its remarks, the court did state: “I’m
satisfied, given the severity of this offense and given the danger that you’ve
posed to your wife and perhaps others, that the minimum amount of time before
parole eligibility is an appropriate sentence in this case and it’s the least
required.” In making this statement, however, the court
was neither promising nor endorsing an early release for Eckstein. Rather, the court was recognizing the
possibility of an early parole and accounting for that possibility when
imposing the sentence.
¶28 Because Eckstein failed to establish that a new factor exists to justify sentence modification, we conclude the trial court properly denied his motion.
the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
 Because the offenses occurred
in 1998, the court imposed indeterminate sentences. “Truth-in-sentencing” revisions were enacted
in 1998 and apply to felonies committed on or after December 31, 1999. See 1997
 All references to the Wisconsin Statutes refer to the 2007-08 version unless otherwise noted.
 Miranda v.
 The letter discussed changes
in the law concerning mandatory release on parole. Specifically, Thompson acknowledged the 1994
statutory change replacing mandatory release on parole with “presumptive
mandatory release” for serious felonies.
Thompson further directed the Department “to pursue any and all
available legal avenues to block the release of violent offenders who have
reached their mandatory release date.” State
v. Wood, 2007 WI App 190, ¶11 n.4, 305